Download THE PRINCIPLE OF COMMON BUT DIFFERENTIATED

THE PRINCIPLE OF COMMON BUT DIFFERENTIATED
RESPONSIBILITIES IN THE INTERNATIONAL CLIMATE
CHANGE LEGAL FRAMEWORK
Background, New Developments and Challenges of the Principe
of Common But Differentiated Responsibilities in the Climate
Regime
University of Oslo
Faculty of Law
MABASI THADEUS
Department of Public Law
Supervisor: Christina Voigt
Deadline for submission: ).. December 1, 2010:
Number of words: 17,949 (max. 18.000)
23.11.2010
Contents
1 Introduction
1.1 Objectives and research questions
12
1.2 The importance and justification of the study
13
1.3 Methodological overview
13
2 The principle of CBDR in the international climate change legal framework
13
2.1 Common responsibility in the climate regime
13
2.2 Differentiated responsibility in the climate regime
14
2.3 Arguments for CBDR in the climate regime
15
2.3.1 The equity and the polluter pays principles
2.3.2 The economic and capacity argument
2.4 Arguments against CBDR in the climate regime
15
15
17
2.4.1 The fairness argument
17
2.5 CBDR in the climate regime
18
2.5.1 Provisions that differentiate between countries with respect to the central obligations of the treaty
2.5.2 Provisions that differentiate between countries with respect to the implementation of the treaty
2.5.3 Provisions that grant assistance
19
21
35
2.6 CBDR at recent climate negotiations
44
2.6.1 The Copenhagen Accord and CBDR
44
3 Challenges of the principle of CDBR in the climate regime
49
3.1 Non-participation
49
3.2 Challenges of emission targets and per-capita approach
50
3.3 Challenges associated with comparability of action
51
4 Recommendations
5
3
52
4.1 Set targets for developing countries
52
4.2 The need for new formulas for setting targets
53
4.3 Create Incentives for developing countries to join a system of quantitative targets
54
4.4 Need to differentiate within the developing countries
55
Conclusions
References
57
60
II
1 Introduction
The presence of disparities between States on the one hand and ecological and economic
interdependence on the other has given rise to a number of challenges in international
cooperative efforts. In the realm of international environmental cooperation, the
challenge is one of integrating diverse States into environmental treaty regimes.1 For now
over three decades of environmental dialogue, countries have created a conceptual legal
framework, arrived at a range of different burden-sharing arrangements, and deployed
various principles to integrate different States into international environmental regimes.2
The Principle of Common but Differentiated Responsibilities (hereinafter referred to as
CBDR) is one of the most effective principles in the international environmental law
legal regime.
The principle of common but differentiated responsibility primarily entails two elements:
common responsibility and differentiated responsibilities. These two elements are
explained below.
Common responsibility describes the shared obligations of two or more States towards
the protection of a particular environmental resource. Common responsibility is likely to
apply where the resource is shared, under the control of no state, or under the sovereign
control of a state, but subject to a common legal interest.3 The concept of common
responsibility evolved from an extensive series of international laws governing resources
labelled as ‘common heritage of mankind’ or of ‘common concern.’4
The CBDR principle has been applied in several treaties, The 1952 Tuna Convention,
inter alia categorizes tuna and fish as being of “common interest of mankind and the
1
L. Rajamani ,‘The Nature, Promise, and Limits of Differential Treatment in the Climate Regime, in Ole Kristian
Fauchald & Jacob Werksman (Eds.), Year Book of International Environmental Law, Oxford University Press. vol.
16, p. 82(2005) .
2
Id.
3
Philippe Sands, Principles of International Environmental Law (2nd ed , Cambridge Univ. Press 2003) .
4
Id. at 217.
3
conservation of these species is aimed at serving common interest of mankind.5 Under the
Outer Space Treaty, the outer space and the moon are referred to as the “province of all
mankind”6. The preamble to the Ramsar Convention categorises waterfowls as an
“international resource”7. The World Heritage Convention refers to the “World Heritage
of mankind as a whole,” and imposes a duty on the international community to protect it.8
Although state practice is inconclusive as to the precise legal nature of each formulation,
certain legal responsibilities are attributable to all States with respect to these
environmental media and natural resources under treaty or customary law.9 While the
extent and legal nature of that responsibility will differ for each resource and instrument,
the responsibility of each state to prevent harm, in particular through the adoption of
environmental standards and international environmental obligations, can also differ.10
A distinction should be drawn between the concepts of “common interest”, “common
concern”, “common heritage of mankind” and common responsibility under CBDR.
While the former refer to collective responsibility to which state sovereignty must
give way to some extent and were originally developed to deal with global common
issues , such as the use of deep seabed resources and the utilization of the outer space,
common responsibility under the CBDR on the other hand goes a step further to include
perspectives on states’ historical contributions to global environmental degradation
and incorporates fairness and justice elements to be taken into account when devising
relevant legal commitments.11 It follows from the above that common responsibility
under CBDR is based on the principle of solidarity of fair sharing of both the effort to
5
International Convention for the High Seas Fisheries of the orth Pacific Ocean, 9 May 1952, United StatesCanada-Japan, 4 U.S.T. 380, T.I.A.S. No. 2786.
6
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies, 27 Jan. 1967 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force 10 Oct. 1967),
Article 1.
7
Convention on Wetlands of International Importance, Especially as Waterfowl Habitat, 2 Feb. 1971, T.I.A.S. No.
11,084, 996 U.N.T.S. 245, Art. 2(3), Preamble.
8
Convention Concerning Protection of World Cultural Property and atural Heritage, 23 Nov. 1972 U.S.T. 40.
Article 6.
9
Sands , supra note 3, at 218.
10
Id. at 218-219.
11
Id.
4
protect a resource and of the enjoyment of the accruing benefits.12 Common
responsibility under CBDR was a response to the voices mainly coming from the
developing world demanding fairer rules to international environmental cooperation.13
The second element is differentiated responsibility which entails the need to take into
account the different circumstances, particularly each State’s contribution to the
evolution of a particular problem and its ability to prevent, reduce and control the
threat.14 Differentiated responsibility of States for the protection of the environment is
widely accepted in treaty and other State practices. It translates into differentiated
environmental standards set on the basis of a range of factors, including special needs and
circumstances, future economic development of countries, and historic contributions to
the creation of an environmental problem.15
Differentiated responsibility therefore aims to promote substantive equality between
developing and developed States within a regime, rather than mere formal equality.16 The
rationale is to ensure that developing countries can come into compliance with particular
legal rules over time – thereby strengthening the regime in the long term.17 The next
paragraphs illustrate the application of Differentiated responsibilities in treaties, soft law
and international case law among others.
Differentiated responsibility has been enacted in a number of treaties and it is usually
mentioned alongside common responsibility. One of the aims of the 1982, UNCLOS is to
inter alia
create “a just and equitable international economic order which takes into
account the interests and needs of developing countries.18 The international Undertaking
12
Id.
Id.
14
Id. at 219.
15
Id. see also , Tuula Honkonen, the Common But Differentiated Responsibility Principle in Multilateral
Environmental Agreements : Regulatory and Policy Aspects. (Kluwer Law International , Netherlands 2009).
16
Sands, supra note 3 at 218.
17
Id.
13
18
United ations Convention on the Law of the Sea, 10 December 1982, UN Doc. A/CONF.62/122 21 ILM 1245
(entered into force 16 November 1994).
5
on Plant Genetic Resources of 1983 after declaring plant genetic resources to be a
“heritage of mankind,” calls upon parties to cooperate in establishing or strengthening the
capabilities of developing countries with respect to plant genetic resource activities.19
The preamble to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer
requires “special provision to meet the needs of developing countries, including the
provision of additional financial resources and access to relevant technologies. In
addressing the special needs of developing countries, the protocol grants them a ten-year
grace period for compliance and it stresses that their achievement of the goals set by the
protocol is dependent on financial cooperation and technology transfer from developed
countries.20
The United ations Framework Convention on Climate Change of 1992 which is the
main focus of this study is dominated by provisions on CBDR. It begins by referring to
climate change as “a common concern of humankind.21 The preamble in no uncertain
terms calls for cooperation by all countries in accordance with their common but
differentiated responsibilities. The commitments under the Convention are subject to
CBDR.22 Economies in transition are also subjected to differential treatment.23 The 1997
Kyoto Protocol which is the implementing Protocol to the FCCC also reiterates CBDR.
Accordingly, developed countries take up certain commitments to reduce greenhouse gas
emissions, economies in transition have lesser commitments and developing nations
make no commitments at all under the Protocol.24
19
Food and Agriculture Organization, International Undertaking on Plant Genetic Resources (1983), art. 1. 6.
Montreal Protocol on Substances the Deplete the Ozone Layer, 16 September 1987, 26 I.LM 154 (entered into
force 1 January 1989), as amended by the London Amendments to the Montreal Protocol on Substances that Deplete
the Ozone Layer, June 29, 1990, UNEP/OZ.L.Pro.2.3, art 5(1) [hereinafter Montreal Protocol]. Arts. 5, 10, 10A.
21
United ations Framework Convention on Climate Change, 9 May 1992, 31 I.L.M. 849, Preamble. Art. 3(1),
3(2).(Hereinafter UNFCCC).
22
Id. art. 4(1), 4(2).
23
Id. Art. 4(6).
24
Kyoto Protocol to the United ations Framework Convention on Climate Change, 10 December 1997, 37 I.L.M.
22 (1998), arts. 3(1) and (5) [hereinafter Kyoto Protocol].
20
6
Under the United ations Convention to Combat Desertification (UNCCD),
desertification and drought are recognized as having a global effect. In addressing these
problems, the Convention calls for “full consideration of the special needs and
circumstances of affected developing countries particularly the least among them.25
The Convention on Biological Diversity in its preamble notes that “conservation of
biological diversity is a common concern of humankind.” On the basis of CBDR, it calls
for special provision to meet the needs of developing countries.26 It mandates all parties
to cooperate in the provision of financial and other support to developing countries for inand ex-situ conservation.27 Differentiation is articulated in clearer terms under Article 20
thus: developed countries must provide financial resources to developing countries to
enable the latter to implement the Convention. It further provides in Article 20(4) that
developing countries’ ability to meet their obligations depends on developed countries
implementing their own commitments on financial resources and technology transfer.
The International Treaty on Plant Genetic Resources for Food and Agriculture, while
recognizing that “plant genetic resources for food and agriculture are a common concern
of all countries,”28enacts differentiation by imposing certain responsibilities on developed
countries for the benefit of developing countries and economies in transition. Hence,
international cooperation is to be directed to establishing or strengthening the capabilities
of developing countries and economies in transition.29 In addition, parties are required to
promote the provision of technical assistance to developing countries and economies in
transition.30
25
Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification,
particularly in Africa, 17 June 1994, 33 I.L.M. 1328 [hereinafter Desertification Convention]. Art. 3, 5, 6.
26
United ations Convention on Biological Diversity, 5 June 1992, 31 I.L.M. 822.
27
Id. arts. 8(m) and 9(e).
28
International Treaty on Plant Genetic Resources for Food and Agriculture, November 2001 (entered into force 29
June 2004).
29
Id. art. 7.2(a).
30
Id. art.8.
7
The Convention on Persistent Organic Pollutants (POPs),31 in its preamble makes
mention of the respective capabilities of developed ad developing countries and the
common but differentiated responsibilities of State and makes provision for exceptions
from some obligations and requires that the conference of the Parties takes due account
of
the special circumstances of the developing country Parties and Parties with
economies in transition” in deciding whether to grant the exceptions.32 Under Article
12(12), parties are required to provide timely and appropriate technical assistance” to
developing and transitioning countries to assist them to meet their obligations under the
Convention and under Article 13(2) there are similar requirements for financial
assistance. The 1996 Protocol to the London Convention obliges developed countries to
transfer technology for the benefit of “developing countries and countries in transition to
market economies, on favourable terms.”33
CBDR, is also enshrined under the WTO, agreements, here the principle manifests itself
in terms of what is referred to as “special and differential treatment” provisions. These
provisions grant developing countries longer time periods to implement commitments as
well as provisions that allow developed countries to treat developing countries more
favourably to increase their trading opportunities.34 There are also provisions which
require technical assistance and technology transfer from developed to developing
countries. Under the GATT for example, there is enshrined in the “Enabling Clause” a
system of preferences under which “parties may accord differential and more favourable
treatment to developing countries, without according that treatment to other contracting
31
Stockholm Convention on Persistent Organic Pollutants, 22 May 2001 (entered into force 17 May 2004). 8
32
Id. art. 4(7).
1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
Nov. 13, 1046 U.N.T.S. 120, 11 I.L.M. 1294 (1972), art. 13(1.5).
33
34
Jarrod Hepburn and Imran Ahmad., The Principle of Common but Differentiated Responsibilities. A Legal
Working Paper in the CISDL “Recent Developments in International Law Related to Sustainable Development”
Series. Available at: http://www.cisdl.org/pdf/sdl/SDL_Common_but_Diff.pdf (accessed on 18 November 2010).
8
parties.”35 When granting concessions, developed countries should not demand that
developing countries reciprocate.36
CBDR under the TRIPS inter alia takes the form of granting extra implementation time
to developing countries37 and indefinitely delaying implementation for the least
developed countries.38 Developed countries are obliged under the TRIPS to provide
incentives to “enterprises and institutions in their territories” for technology transfer to
developing countries “in order to enable them to create a sound and viable technological
base.39 Developing countries are at liberty under the SPS Agreement to request timelimited exemptions from their obligations , on the other hand , developed countries are
required to consider providing technical assistance to exporting developing countries to
allow them to meet any SPS standards set by the importing developed country.40
Therefore, CBDR has been accorded a place in the international economic system.
Differentiated responsibility has also been expressed in soft law. Under the
Johannesburg Plan of Implementation (JPOI), CBDR was stated in no uncertain terms
thus: The implementation of Agenda 21 and the achievement of the internationally agreed
development goals, including those contained in the Millennium Declaration as well as in
the present plan of action, require a substantially increased effort, both by countries
themselves and by the rest of the international community, based on the recognition that
each country has primary responsibility for its own development and that the role of
national policies and development strategies cannot be overemphasized, taking fully into
35
Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing
Countries, GATT Doc. L/4903, 28 November 1979, B.I.S.D. 203, para. 1.
36
World Trade Organization, General Agreement on Tariffs and Trade 1947, art. XXXVI(8).
World Trade Organization, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement), art. 65:2.
38
Id. art. 66:1.
39
Id. Art. 66:2
40
World Trade Organization, Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), arts. 9.2 and
10.3. 9.
37
9
account the Rio principles, including, in particular, the principle of common but
differentiated responsibilities.41
The implication of the above provision is that CBDR is one of the guiding principles for
the implementation of Agenda 21.
The 1995, Copenhagen Declaration also enunciates
CBDR, it
provides that “the
formulation and implementation of strategies, policies, programmes and actions for
social development are the responsibility of each country and should take into account
the economic, social and environmental diversity of conditions in each country.”42 Under
Commitment 5 parties are required to cooperate to assist developing countries at their
request, in their efforts to achieve equality and equity and the empowerment of women.
Commitment 7 calls for support for the “the domestic efforts of Africa and the least
developed countries to implement economic reforms, programmes to increase food
security, and commodity diversification.”
The 1972 Stockholm Declaration in its principle 23, provides that :Without prejudice to
such criteria as may be agreed upon by the international community, or to standards
which will have to be determined nationally, it will be essential in all cases to consider
the systems of values prevailing in each country, and the extent of the applicability of
standards which are valid for the most advanced countries but which may be
inappropriate and of unwarranted social cost for the developing countries.43
The 1992 Rio Declaration provides that the special situation and needs of developing
countries, particularly the least developed and those most environmentally vulnerable,
41
Johannesburg Plan of Implementation, Report of the World Summit on Sustainable Development, Johannesburg,
South
Africa,
4
Sept.
2002,
UN
Doc.
A/CONF.199/20:
<http://www.un.org/esa/sustdev/documents/WSSD_PoI_PD/English/POITOC.htm>. Para. 81.
42
World Summit for Social Development Copenhagen Declaration, U.N. Doc. A/CONF.166/9 (1995), para. 28.
43
Stockholm Declaration on the Human Environment, UN Doc. A/C. 48/14 (1972), 11 ILM 1461 (1972) Principle
23.
10
shall be given special priority. International actions in the field of environment and
development should also address the interests and needs of all countries.44
It is evident from the above provisions that the underlying rationale for CBDR is to
promote distributive equity between developing and developed countries. CBDR acts as
an incentive for developing countries’ compliance with their obligations under a given
international instrument.45
Finally, differentiated responsibility has been expressed in international case law, as
demonstrated below. In the Shrimp/Turtle case,46
which involved
an import ban
imposed by the United States on Shrimp not caught with US-approved
Turtle
Excluder Devices (TEDs) in order to protect certain species of sea turtle whose
existence was being threatened by commercial shrimp harvesting. The issue was
whether the ban was a protectionist measure designed to support the American shrimp
industry. The principle of CBDR was implicit in the language of the appellate body, it
stated interalia that: “We believe that discrimination results not only when countries in
which the same conditions prevail are differently treated, but also when the application of
the measure at issue does not allow for any inquiry into the appropriateness of the
regulatory program for the conditions prevailing in those exporting countries.”
Differential treatement here can be inferred from the appellate panel’s use of the word
“appropriateness.”
CBDR was however expressly stated by the WTO Panel in the same case to the effect
that States have common but differentiated responsibilities to conserve and protect the
environment.47
44
Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and
Development, UN Doc. A/CONF.151/6/Rev.1, (1992), 31 I.L.M. 874 (1992), Principle 6.
45
Hepburn and Imran., supra. note 34.
46
United States – Import Prohibition of Certain Shrimp and Shrimp Products, 20 September 1999, WTO Doc.
WT/DS58/AB/R (Appellate Body Report).
47
United States – Import Prohibition of Certain Shrimp and Shrimp Products, 15 June 2001, WTO Doc.
WT/DS58/RW (Panel Report), para. 7.2.
11
CBDR was also invoked by the Appellate Body in the Asbestos case.48 In determining
whether a trade measure was necessary ” to meet a country’s health policy goals, the
appellate body defined ”reasonably available altertantivess” and inter alia concluded that
reasonably available alternatives are measures that a country could reasonably be
expected to employ.49 It therefore follows froms this observation that if a proposed
altertative is beyond the means of a developing country, that country does not have to
implement it but may adopt the trade measure in dispute as a ”necessary” one. This in
effect is differential treatment.50
Having given the background of the principle of CBDR, this study will then focus on
the principle of CBDR in the Climate Change Legal Framework. The remainder of this
chapter deals with the research questions , the objectives , justification of the study,
methodology and scope. Chapter two is the main thrust of this study, it describes the
principle of CBDR in the Climate change legal framework, chapter three examines the
challenges of CBDR in the Climate Regime , chapters four and five deal with
recommendations and conclusions respectively.
1.1 Objectives and research questions
This study set out to achieve the following objectives: to examine how the principle of
CBDR is applied in the international climate change legal framework, To examine the
origin and content of the principle of CBDR, to explain how the principle of CBDR is
applied in the international climate change legal regime, to examine new developments as
regards the principle of CBDR, to assess the challenges of the Principle of CBDR in the
Climate Regime, to make recommendations for the effective application of the principle
of CBDR in the Climate Regime.
To achieve the above objectives, the study was guided by the following research
questions: how is the principle of CBDR applied in the international climate change legal
48
European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (Complaint by
Canada), 12 March 2001, WTO Doc. WT/DS135/AB/R (Appellate Body Report), para. 169.
49
Id. para. 69.
50
Id. para. 170.
12
framework?, What is the origin and content of the principle of CBDR?, how is the
principle of CBDR applied in the international climate change legal framework?, what
are the new developments as regards CBDR in the Climate Regime.?, what are the
challenges of the Principle of CBDR in the climate change regime?, how can CBDR be
applied effectively and efficiently in the Climate Regime?.
1.2 The importance and justification of the study
There is limited literature on this principle in a specific legal regime. This study aims to
examine how the principle of CBDR is applied in the Climate Change Legal Framework.
This study is further justified by the evolving nature of the principle of CBDR in the
Climate regime. The thesis highlights the new developments of CBDR.
1.3 Methodological overview
The study relied mainly on the qualitative method to examine the principle of CBDR as
applied in general environmental law. This study relied on primary and secondary
sources of information. Primary sources included materials from the library on climate
change. Library text books provided information on the theories of the principle of
common but differentiated responsibilities. Internet research provided access to recent
publications on the principle of CBDR. Additionally, interviews with some law
professors were conducted to get their views on the principle of CBDR.
2 The principle of CBDR in the international climate change legal framework
2.1 Common responsibility in the climate regime
Common responsibility in general has already been discussed in details in chapter one.
Suffice it to mention here that Common responsibility in the Climate regime is rooted in the
principle of cooperation which inter alia states that States are obliged , in the spirit of
solidarity , to cooperate in preventing transboundary pollution.51 The common responsibility
51
Principle 24 of the Stockholm Declaration 1972, Principle 7 of the Rio Declaration 1992, GA Res. 2995 (1972).
13
primarily involves an obligation to cooperate to conserve, protect and restore the health and
integrity of Earth’s ecosystem.52
The 1992 FCCC echoes this common responsibility in no uncertain terms thus: The Parties
to this Convention, Acknowledging that change in the Earth’s climate and its adverse effects
are a common concern of humankind.53 According, the FCCC aims to stabilize greenhouse
gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system’.54 To achieve this objective the principle of, common
responsibility in the climate change regime incorporates states’ historical contributions to
global environmental degradation and embraces fairness and justice elements to be taken into
account when devising relevant legal commitments.55 This results in differential treatment
which is discussed in the next subsections.
2.2 Differentiated responsibility in the climate regime
In the Climate Regime , differentiated
responsibility
derives
from the differing
contributions of states to climate change and the differing capacities of states to take
remedial measures. At the Rio, parties acknowledged the contributions of industrial countries
to the global crisis.56 It is against this background that some scholars have deduced that the
legal basis for the transfer of technology and financial resources from the industrial to
developing countries under the principle of CBDR is entitlement rather than need.57
52
Principle 7 of the Rio Declaration 1992.
UNFCCC , Para 1.
54
Article 2 FCCC, preamble to the Kyoto Protocol.
55
Sands, supra note 3 , at 218-219.
56
Lavanya Rajamani, Differential Treatment in International Environmental Law , (Oxford : Oxford University
Press 2006) p 136.
53
57
Chowdhury, ‘Common but Differentiated Responsibilities in International Environmental Law from Stockholm
to Rio’, in Sustainable Development and Good Governance (Konrad Ginther et al.eds., 1995), 322, 333-4.
14
2.3 Arguments for CBDR in the climate regime
2.3.1 The equity and the polluter pays principles
The argument advanced by developing country parties is that owing to the fact that
industrial countries bear the overwhelming responsibility for historical GHG emissions
they should bear the primary burden of averting climate change.
In terms of per capita entitlements. Proponents of this school of thought argue that the most
important criteria for deciding the rights to environmental space is the per capita since this is
a direct measure of human welfare on ground that the atmosphere is a common heritage of
humankind , equity has to be the fundamental basis for its management’.58
The notion of ‘carbon debt’ is also related to the per capita argument. According to the
notion of carbon debt, those countries and populations that use more than their fair share of
the atmosphere, and contribute more to the damaging effects of global warming, are running
up a debt to those countries that use less than their fair allocation.59
It is on the basis of the foregoing proposition that developing countries are unanimous in
arguing that the debt industrialized countries owe to the global community for climate,
erases the moral legitimacy to keep holding poor developing countries hostage to their
own much smaller, but still unpayable , financial debts’.60 In addition proponents of this
school of thought also argue that it provides moral legitimacy to claims for significant new
resources and technology from industrial countries to help poor countries affected by the
increasingly volatile and uncertain global environment.61
2.3.2 The economic and capacity argument
Vulnerability to Climate Change differs from country to country.62 Impacts of climate
change are a product of the degree and nature of physical change , the degree to which
the society depends on the natural resources affected and its institutional and social
58
Saifuddin Soz, ‘India Rejects Incorporation of New Environmental Commitments for Developing Counties’,
Address to the UNFCCC (8 December 1997), available at: www.indianembassy.org/policy/Environment/soz.htm.
59
Who owes Who: Climate Change, Debt, Equity and Survival (Christian Aid, 1999).
60
Marcela Valente, ‘Argentine President Heats up North-South Debate,’ (Inter Press Service News Agency, 15
Dec. 15, 2004).
61
Id.
62
Rajamani, supra note 56, at 178-179.
15
capabilities for handling change.
63
In hotter climates and for developing countries with
economies that depend more heavily on natural resources , the impacts are widely
expected to be adverse partly because institutional and social structures tend to be weaker
and hence less able to cope with change.64 Developing countries also have fewer financial
resources for investing in robust infrastructure that are resilient to the adverse effects of
Climate Change.65
Accordingly, capacity to take remedial measures is one of the criteria for differentiating
between countries under the CBDR principle.66
Under the Rio Declaration, industrial
countries’ responsibility is premised on their superior technologies and financial resources
and in the FCCC it is based on their respective capabilities.67
The capacity criterion in the CBDR principle builds on the polluter pays principle68which
inter alia requires that the costs of pollution should be borne by the person or persons
responsible for causing the pollution.69 The capacity criterion is closely linked to the past,
current, and future contributions criterion.70
However the validity of this argument is in question given the fact that greenhouse gas
emissions of developing country parties are rapidly increasing and are expected to surpass
emissions of the United States and other [developed] counties as early as 2015. In fact,
developing world emissions began to outpace developed emissions in 2005, and they are
projected to continue increasing seven times faster than in the developed world.71 China
63
Id.
Id.
65
Id.
66
Id. at 148
67
Rio Declaration, Principle 7 , FCCC article 3.
68
Rio Principle 6.
69
Philippe Sands, ‘International Law in the Field of Sustainable Development :Emerging Legal Principles,’ in
Sustainable Development and International Law (Winfield Lang ed.,1995), 53, 66.
70
Rajamani, supra note 56 at 149.
71
Energy
Information
Administration,
"International
Energy
Outlook
2009,"
Chapter
8,
athttp://www.eia.doe.gov/oiaf/ieo/emissions.html (Nov. 2, 2009).
64
16
alone now out-emits the U.S., and its emissions growth through 2030 is projected to be nine
times higher than that of the U.S.72
In effect, any reduction in emissions from developed nations would be rendered moot by
burgeoning emissions from developing nations even more so if developed-nation constraints
shift economic activity to exempted nations.73
2.4 Arguments against CBDR in the climate regime
2.4.1 The fairness argument
Developed countries led by the US argue that developing countries would have an unfair
economic advantage if they did not face the same restrictions as annex 1 parties. The
unfairness would manifest itself through export of jobs and industries to developing
nations and the climate change treaty would prove ineffective without developing country
participation.74
The views of the US are express in no uncertain terms in the Byrd-Hagel Resolution of
the 1997 which inter alia forbids the United States from signing any legal agreement
regarding the FCCC that would ‘mandate new commitments to limit or reduce
greenhouse
gas emissions
for Annex I countries , unless the protocol or
other
agreement also mandates new specific scheduled commitments to limit or reduce
greenhouse gas emissions for developing country Parties within the same compliance
period.75
The Byrd-Hagel Resolution calls for a fair sharing of the burden which requires binding
targets for the developing world that begin at the same time as the industrial world but
72
Id. Figs. 83 and 84.
David Kreutzer et al., The Economic Consequences of Waxman-Markey: An Analysis of the American Clean
Energy and Security Act of 2009, Heritage Foundation Center for Data Analysis Report No. CDA09-04 (Aug. 6,
2009) athttp://www.heritage.org/Research/EnergyandEnvironment/cda0904.cfm.
74
Paul G. Harris, OCEES Research Paper , Understanding America’s Climate Change Policy: Real politik,
Pluralism and Ethical orms (1998), 15.
75
Senate Resolution 98, 25 July 1997.
73
17
incorporates flexibility for developing countries with regards to targets timing and
breadth of commitments.76
The Byrd-Hagel Resolution represents the official U.S. policy on Climate Change and
serves as the overarching guidelines for discussing any new climate treaty. The Senate
meant for its resolution to apply to all future global warming negotiations.77
Therefore, the Climate Regime is unfair to developed countries to the extent that the
UNFCCC and the Kyoto Protocol thereto exempt 77 percent of all countries from any
obligations. Countries like China, India, Mexico, and Brazil are completely unfettered by
the Treaty. This gives them a competitive advantage of cheap labour, lower production
costs, and lower environmental, health and safety standards. Hence these countries will
be free to develop and pollute all they want, while the economy of developed countries
goes into deep freeze.78
2.5 CBDR in the climate regime
CBDR in the climate regime will be discussed under three main themes. First, provisions
that differentiate between industrial and developing countries with respect to the central
obligations
contained
in the treaty, such as
emission reduction targets; second
provisions that differentiate between industrial and developing countries with respect
to implementation , such as delayed compliance
schedules, permission
subsequent base years, delayed reporting schedules, and
to adopt
soft approaches to non-
compliance, and, third, provisions that grant assistance, intera alia financial and
technological.
The next sections give a detailed examination of differential treatment in the climate
regime on the basis of the three themes above mentioned.
76
Id.
S. Res. 98, 105th Cong., 1st Sess., emphasis mine.
78
Benito Muller , Congressional Climate Change Hearings: Comedy or Tragedy? A Prime for Aliens (Oxford
Institute for Energy Studies, 2000).
77
18
2.5.1 Provisions that differentiate between countries with respect to the central obligations
of the treaty
The central obligations of a treaty have been defined to mean those obligations which
when executed, fulfill the purpose(s) or objective(s) of the treaty.79 In the context of the
climate regime, the FCCC aims to stabilize greenhouse gas concentrations in the
atmosphere at a level that would prevent dangerous anthropogenic interference with the
climate system’.80
This goal is to be achieved through mitigation which is a preserve of industrial countries.
Accordingly, the FCCC requires industrial countries to undertake policies and measures
on the mitigation of climate change and to communicate detailed information on such
policies and measures with the aim of returning by 2000, individually or jointly , to the
1990 levels of anthropogenic emissions of Co2 and other GHGs.81 Again this obligation
falls on industrial countries and from the use of the word ‘shall’ it is evident that it is
mandatory unlike the obligation to mitigate emissions which has been interpreted as an
‘aim’ and a ‘quasi-target and ‘quasi-timetable.82
Similarly, under the Kyoto Protocol, the main obligations are exclusive to industrial
countries. Industrial countries are required under Article 3 of the Kyoto Protocol to
individually or jointly ensure
that their aggregate
anthropogenic CO2 equivalent
emissions of certain GHGs83 do not exceed their assigned amounts, calculated pursuant
to their quantified emission limitation and reduction commitments inscribed in Annex
B with a view to reducing their overall emissions of such gases by at least 5% below
1990 levels in the commitment period 2008-12.84 Like the FCCC, the Kyoto Protocol
uses an obligatory language by adopting the phrase ‘Parties shall’.85 Furthermore, under
79
Rajamani, supra note 56 , at 191.
UNFCCC art. 2 . Preamble to the Kyoto Protocol.
81
UNFCCC. art. 4(2)(a) and (b) FCCC.
82
Daniel Bodansky, ‘The United Nations Framework Convention on Climate Change: A commentary’, 18 Y.J .
Int’L L. 451, 516 (1993).
83
Annex A to the Kyoto Protocol.
84
Kyoto Protocol art. 3(1).
85
Id.
80
19
article 3(2), parties are required by 2005 to have made demonstrable progress in
achieving the commitments under the Protocol.
The exclusion of developing countries from the obligations and commitments under both
the FCCC and the Kyoto Protocol is a clear demonstration of differential treatment under
the climate regime. In addition, the Kyoto Protocol in its Article 6(2) makes provision for
industrial countries to advance
commitments in subsequent periods. Accordingly, the
Protocol states that ‘commitments for subsequent periods for Parties included in Annex I
shall be established in amendments to Annex B to this Protocol.’86
In terms of implementation, the Kyoto Protocol puts in place a mechanism for realizing
Annex I commitments. The Protocol enjoins Annex I countries to establish national
systems for the estimation of anthropogenic emissions by sources and removals by
sinks of GHGs.87 It also requires them to communicate as part of their national
inventories and national communications information relevant for the purposes of
ensuring compliance with their mitigation commitments.88 This information is then
reviewed by Expert Review Teams.89
The Kyoto Protocol creates three mechanisms for industrial countries to meet their
mitigation commitments, of these three mechanisms only the Clean Development
Mechanism (hereinafter CDM) is applicable to developing countries. Article 6 provides
for Joint Implementation which is intended for Parties included in Annex I’90 and
Emissions Trading described in Article 17 is restricted to ‘Parties included in Annex B’.
The origin of CDM can be traced to a Brazilian Proposal for a Clean Development
Fund that sought to impose financial penalties on Annex I parties for falling into
non-compliance, and to recycle the funds to non-Annex I Parties for the purpose of
86
Id. art. 3(9).
Id. art. 5.
88
Id. Art. 7(1) and (2).
89
Id.art. 8.
90
Id.art.6(1).
87
20
addressing
climate change.91
In the course of the negotiations
Brazil’s Clean
Development Fund underwent a metamorphosis and emerged as the CDM,92 which
would give industrial countries some flexibility in meeting their targets and involve
developing countries in emissions mitigation efforts.
CDM signifies the involvement of developing countries in the mitigation endeavour. The
participation of developing countries in the CDM aims to further Annex I Protocol
commitments as well as further
non annex I FCCC commitments. The underlying
rationale for CDM as stated in Article 12(2) of the Kyoto Protocol is to ‘ assist Parties
not included in Annex I in achieving sustainable development and in contributing to
the ultimate objective of the Convention, and to assist Parties included in Annex I in
achieving
compliance
with their
quantified
emission
limitation and reduction
commitments under Article 3.’ The obligations of the developing countries is defined
under the FCCC to include inter alia sustainable development which is to be attained by
their participation in the CDM’s emissions reductions thereby contributing to the ultimate
objective of the FCCC. On the other hand, industrial countries’ participation in the CDM
is in furtherance of their Protocol targets.93
It is evident from the distinction between the FCCC and the Kyoto Protocol
Commitments that the CBDR is at play with the heaviest responsibility lying on
industrial countries even under CDM whose purpose as indicated above is to inter alia
further Annex I commitments.
2.5.2 Provisions that differentiate between countries with respect to the implementation of
the treaty
The relevant provisions are discussed in six categories. The first category is provisions that
provide a context of differential treatment to implement which are contained in the
91
Technical Paper, Tracing the Origins of the Kyoto Protocol: An Article-by-Article Textual History,
FCCC/TP/2000/2(2000) at 60.(hereinafter Technical Paper).
92
Ken Johnson, ‘Brazil and the Politics of the Climate Change Negotiations’, 10(2). Env’t & Devt .178 (2001).
93
UNFCCC art. (3)(b).
21
preambular and operational provisions. Differential treatment can be deduced from the
preamble to the FCCC. The preamble inter alia affirms the contribution of industrial
countries to the GHG by observing that the ‘largest share of historical and current global
emissions of greenhouse gases has originated in developed countries’.94 It further notes that
the ‘global nature
of climate change
calls for…widest possible participation by all
countries…in accordance with their common but differentiated
responsibilities
and
respective capabilities and their social and economic conditions.’95Accordingly, developed
countries are called upon to take immediate action,’ ‘as a first step towards comprehensive
response strategies at the global, national and where agreed, regional levels.’96
It is submitted that the CBDR principle is the result of a compromise between industrial and
developing countries.97
Developing
countries had sought
inclusion of
the ‘main
responsibility principle,’ part of GA Resolution 44/228 convening UNCED, and a direct
emanation of the polluter pays principle, which posits that since the climate problem
results primarily from the profligate lifestyles, of industrial countries , they should bear
the main responsibility for combating it.98 Instead the preamble contains the CBDR
principle which , at least in the Preamble , does not specify on what basis differentiation
is to be made between countries capability and/or culpability.
In the Preamble, developing countries enjoy favourable treatment. It provides that ‘per
capita emissions in developing countries are still relatively low and that the share of
global emissions originating in developing countries will grow to meet their social and
development needs.’99 The reference to ‘per capita emissions’ originated in an Indian
proposal that the FCCC should promote the convergence of GHG emissions at a common
per capita level.100
94
Preamble to the UNFCCC , para 3.
Id. para 6.
96
Id. para.18 .
97
Rajamani, supra note 56, at 194.
98
Beijing Declaration on Environment and Development, 19 June 1991 reprinted in 21 Envtl Pol’y L.267(1991).
99
UNFCCC Preamble, supra note 94.
100
Consolidated Working Document, in Report of the Intergovernmental Negotiating Committee for a
Framework Convention on the Work of Its Fourth Session, A/AC.237/15 Annex II (1991)at 229.
95
22
The reference to the emissions growth was originally proposed as a principle and couched
in mandatory terms.101 Nevertheless , the acknowledgement that ‘ per capita’ vision has
some place in the galaxy of possible ideological visions to tackle the climate change
problem is significant. The acknowledgement that emissions from developing countries will
grow is also significant. In the context of the ultimate objective of the FCCC, ‘stabilization
of the greenhouse gas concentration in the atmosphere’,102 such an acknowledgement can be
interpreted as recognition, broadly, of what has come to be known as the ‘contraction and
convergence’ vision.103 This vision envisages as a first step convergence over time in per
capita GHG emissions or entitlements, such that emissions from developing countries
will grow, while those from industrial countries will decrease. After convergence, all
countries would contract their GHG emissions equally until the necessary contraction limit
is reached. No inflation of National Budgets in response to the rising populations would be
permitted after an agreed set date.104
Further, the preamble underlines the importance of social and economic development to
developing countries. It acknowledges that ‘environmental standards applied by some
countries may be inappropriate and of unwarranted economic and social cost to other
countries, in particular developing countries’,105and climate response measures should take
into account ‘the legitimate priority needs of developing countries for the achievement
of sustained economic growth and the eradication of poverty.’106
The next set of provisions are the preambular provisions, a number of operational
provisions of the FCCC contain references to the special needs and particular circumstances
of developing countries. It has been observed that a lot of controversy surrounds, the
101
Id. art. II(I) stating that ‘the net emissions of developing countries must grow’.
UNFCCC art. 2.
103
John Broad ,Third World Network, Contraction and Convergence (1999).
104
Id .
105
UNFCCC preamble para. 18.
106
Id. para.21.
102
23
provision containing the CBDR principle and highlighting industrial countries’
leadership.107
Article 3 of FCCC provides for the Principles. It proceeds by stating that that ‘Parties
should protect the climate system for the benefit of present and future generations of
humankind, on the basis of equity and in accordance with their common but differentiated
responsibilities and respective capabilities.’108 It then calls upon industrial countries to
‘take the lead in combating climate change and the adverse effects thereof’.109 It further
stresses that ‘full consideration’ be given to ‘specific needs and special circumstances of
developing country Parties’.110
Article 3 was opposed by developed countries on grounds that it could, as an operational
rather than a preambular provision,111 introduce a note of uncertainty into the context of the
FCCC obligations. The US delegation was concerned that this Article could create
specific commitments beyond those set out in Article 4, introduced various amendments
to circumscribe the legal potential of Article 3: a chapeau was added, specifying that the
principles were to ‘guide’ the parties in their actions under the FCCC; the term ‘States’
was replaced by ‘Parties’; and the term ‘inter alia’ was added to the chapeau to indicate
that the Parties may take into account principles other than those listed in Article 3 in
implementing the FCCC.112 It has been noted that that these three modifications were
intended to forestall arguments that the principles in Article 3 are part of customary
international law and bind states generally.113 Instead the principles clearly apply only to
107
Rajamani supra note 56, at 196.
UNFCCC art.3(1).
109
Id.
110
UNFCCC.art. 3(2).
111
Developing countries argued that an article on general principles would guide the parties in implementing and
developing the Convention. Industrial countries however questioned the inclusion of this article. The US in
particular opposed its inclusion and argued that if it merely stated the intentions of the parties or provided a
context for interpreting the Convention’s commitments, it served the traditional functions of the preamble and
placing them in the operative part of the Convention would be necessary and even misleading. See Rajamani
supra note 56 at 196 and Daniel Bodansky supra note 82 at 502.
112
Sands, supra note 69 at 53-66.
113
Bodansky, supra not 82 at 502.
108
24
the parties and only in relation to the FCCC, not as general law.114 The United States also
removed any reference to the term ‘principles’ in the FCCC. As a result, the term appears
only in the title of Article 3 and, at the suggestion of the United States, a footnote was added
stating that ‘(t)itles of articles are included solely to assist the reader.’115
The notions of ‘common but differentiated responsibility and respective capabilities’ and
‘industrial countries leadership’ are couched in discretionary and guiding rather than
prescriptive language116 and apply only to parties in relation to the FCCC. While these
notions are neither legally binding nor indeed, as some claim, customary international law,
they still constitute a significant force within the climate regime. The notion of common but
differentiated responsibilities has significant legal implications. It is the context within
which international environmental law functions, such that this principle, inter alia, forms
the foundation of the burden-sharing arrangements crafted in different environmental
treaties. And it is part of the conceptual apparatus of the climate regime such that it forms
the basis for the interpretation of existing obligations and the elaboration of future
international legal obligations within the regime.117 It is in short, the overarching principle
guiding the future development of the climate regime.118
Under CBDR, the limited capacity of developing countries-as a whole-to respond to
climate change is recognized in that they are recipients of financial assistance119 and
technology transfer;120 their particular concerns and needs are taken into account in
improving their capabilities in research and systematic observations;121 they are the
particular focus of efforts to develop and implement education and training programmes,
114
Id .
Id .
116
Rajamani , supra note 56 at 196 notes that the principles contain guiding, rather than prescriptive language. For
example, Parties ‘should’ rather than ‘shall’ protect the climate system. See art.3 FCCC.
117
Rajamani , supra note 56 at 197.
118
Id.
119
UNFCCC art. 4(3) and art. 11(5).
120
Id. art. 4 (5) .
121
Id. art.5(c).
115
25
strengthen national institutions, and train experts;122 and they are provided with assistance
by the FCCC Secretariat in the compilation and communication of information.123
CBDR recognizes the special needs and circumstances of certain categories of countries.
Industrial countries are required to assist the ‘developing country Parties that are
particularly vulnerable to the adverse effects of climate change’ in meeting costs of
adaptation to adverse effects.124
Parties are required to give full consideration to what actions are necessary to meet the
specific needs and concerns of developing countries arising from the adverse effects of
climate change and/or the impact of the implementation of response measures, especially
on a variety of groups of countries ranging from ‘small island countries’ to ‘countries whose
economies are highly dependent on income generated from fossil fuels’.125 Parties are to
take full account of the specific needs and special situations of ‘least developed
countries’ in actions
with respect
to funding
and transfer of technology.126 These
particular groups of developing countries find mention in Article 3(14) and 2(3) of the
protocol that require Parties to implement the Kyoto commitments in such a way as to
minimize adverse social , environmental , and economic impacts on developing countries,
in particular the groups identified in Article 4 (8) and (9) FCCC.127
Parties are required to consider actions such as establishment of funding, insurance and
technology transfer.128 A specific reference is also made to particular continents, for
instance , cooperation is urged in developing and elaborating appropriate and integrated
plans for coastal zone management , water resources and agriculture, and for the protection
122
Id .art .6(b)(ii).
Id.art .8(c).
124
Id. art. 4(4).
125
Id .arts. 4(8) and 4(10) .
126
Id. art. 4(9).
127
Kyoto Protocol art. 3(14) . See also art.2(3) Kyoto Protocol.
128
Id.
123
26
and rehabilitation of areas, particularly in Africa, affected by drought and desertification,
as well as floods.129
The special circumstances and needs of Economies in Transition (EITs) are recognized both
under the FCCC and the Kyoto Protocol. Articles 4(6) and
3(6) of the FCCC and the
Kyoto Protocol respectively enunciate that in the implementation of their commitments the
‘Parties included in Annex I undergoing the process of transition to a market economy’ are
to be allowed ‘a certain degree of flexibility.’
Article 4(10) FCCC has been interpreted to apply to some industrial countries.130 It
requires Parties ‘ to take into consideration in the implementation of the commitments of
the Convention the situation of Parties, particularly developing country Parties , with
economies that are vulnerable to the adverse effects of the implementation of measures to
respond to climate change’.131 Since developing countries that are highly dependent on
fossil fuels are already entitled to special consideration under Article 4 (8), Article 4(10)
is unique in as far as it could be interpreted to apply to industrial countries that produce
fossil fuel (such as Australia , Russia, and the United States).132 It is however unlikely that
these countries will enjoy such special consideration in mitigation of their responsibilities
under the regime.
The Second category deals with language permitting flexibility. Differential treatment in
both the FCCC and the Kyoto Protocol can be inferred from language permitting flexibility
and hence, differentiate treatment in implementation.
Under Article 4 of the FCCC, Parties are required
account’ a series
of considerations
to fulfil commitments ‘taking into
including their common but differentiated
responsibilities and their specific national and regional development priorities, objectives ,
129
UNFCCC art. 4(1)(e) FCCC.
Daniel Bodansky , supra note 82 at 531 .
131
UNFCCC art. 4(10) .
132
Daniel Bodansky supra note 82 at 531.
130
27
and circumstances.133 Further, Parties are required to take climate considerations into
account ‘to the extent feasible’ in their relevant social, economic and environmental policies
and actions.134 In choosing the information to be submitted in their national
communications, again, Parties have some leeway. Parties are required to submit national
inventories of anthropogenic emissions by sources and removals by sinks of all GHGs not
controlled by the Montreal Protocol, ‘to the extent its capacities permit’.135 Parties can
submit any other information ‘the Party considers relevant to the achievement of the
objective of the Convention and suitable for inclusion in its communication, including, if
feasible, material relevant for calculations of global emissions trends’.136
The rationale for such flexible language is to provide developing countries with flexibility
in implementation. However, industrial countries are also permitted flexibility in the
implementation of their technology transfer commitment. Article 4(5) requires industrial
countries to take ‘all practicable steps to promote , facilitate and finance , as appropriate ,
the transfer of , or access to , environmentally sound technologies and know-how’. This
language is reiterated in Article 10(c) of the Protocol.
The use of the phrase ‘as appropriate’ in the FCCC137 reflects flexibility to the COP or
Parties, in taking particular actions. The phrase ‘respective capacities’ is used to signify
flexible language.138
Article 2 of the Protocol requires Parties to initiate policies and measures to achieve their
mitigation commitments, but these can be done ‘in accordance with (its) national
circumstances’.139 The mitigation commitments
133
UNFCCC art. 4(1).
Id. art. 4(1)(f).
135
UNFCCC art. 12(1)(a).
136
UNFCCC art. 12(1)(c ).
137
Id. Arts. 4(8) and 6(a).
138
Id. art. 6(a).
134
139
Id. art. 2(1).
28
however are couched in mandatory
language, Parties ‘shall…(GHGs)…do not exceed their assigned amounts….’140 Parties
have to reach their mitigation targets in the 2008-12 commitment period and make
‘demonstrable progress’ towards this aim by 2005.141
Under article 10 of the Protocol, Parties are required ‘taking into account their common
but differentiated responsibilities and their specific national and regional development
priorities, objectives and circumstances, without introducing any new commitments for
Parties not included in Annex I , but reaffirming existing commitments under Article 4,
paragraph 1, of the Convention , and continuing to advance the implementation of these
commitments in order to achieve sustainable development, taking into account Article 4,
paragraphs 3,5 and 7, of the Convention shall…142
The precise implication of the term CBDR is yet to be determined. The reference to
‘specific national and regional development priorities, objectives and circumstances’ is
uncertain in its import. There are neither standards to judge the legitimacy of national
and regional development priorities or objectives , nor are there methods to determine
which circumstances might be relevant.143
Developing countries pushed for the use of language providing a context of differential
treatment within Article 10 containing commitments for all Parties. Hence the phrases
reminiscent of the Berlin Mandate, ‘without introducing any new commitments for Parties
not included in Annex I…’ and the language referencing the FCCC commitments on
financial assistance
and technology transfer, and
linking developing
countries’
implementation to industrial countries’ performance.144
The sub-paragraphs of Article 10 of the Protocol also contain language providing significant
flexibility to developing countries in implementation. All Parties are required to formulate
140
Id.art. 3(1).
Id.art. 3(2).
142
Id. Chapeau, art. 10.
143
See Rajamani supra note 56.
144
Technical Paper , supra note 91 at 56-9.
141
29
‘where appropriate and to the extent possible national and where appropriate regional
programmes…’145
Non-Annex
I Parties are asked
to include
in their
national
communications ‘as appropriate , information on programmes which contain measures
the Party believes contribute to addressing climate change.’146
Suffice it to trace the negotiating history of Article 10 of the Protocol. Developing countries
argued that advancing the implementation of existing commitments would need to be
coupled with similar advances in the implementation of financial commitments by industrial
countries.147
A proposal for the creation of a specific fund was discussed at length, but eventually
discarded. Article 10 was however placed immediately prior to the article on the financial
mechanism as a reflection that the two articles were linked: advancing commitments for
developing countries would require increased financial support.148
Flexible language is also used in Article 11 on the Protocol on financial mechanism. It
provides that the implementation of the existing commitments shall ‘take into account
the need for adequacy and predictability in the flow of funds and the importance of
appropriate burden sharing among developed country Parties’.149
It is submitted that flexibility here can be inferred from the lack of precision. For instance,
no rules exist to guide what constitutes an adequate and predictable flow of funds; and, no
formula exists to determine what might be an appropriate sharing of the burden.150
The COP serving as the Meeting of Parties (MOP) is mandated under Article 13(4) of the
Protocol to keep under regular review the implementation of this Protocol, and make
145
Kyoto Protocol art. 10(a).
Id. art. 10(b)(ii).
147
Technical Paper ,supra note 91 at 71.
148
Id. at 72.
149
Kyoto Protocol art. 11(2).
150
Rajamani ,supra note 56 at 201.
146
30
decisions necessary to promote its effective implementation. In performing some of its
mandated actions, as for instance with regard to exchange of information on response
measures adopted by the Parties the COP/MOP is required to take into account ‘the
differing circumstances, responsibilities and capabilities of the Parties and their respective
commitments under this Protocol’.151
The third category is provisions that permit flexible time frames for implementation or
delayed compliance schedules. The climate regime provides for time-dependent
commitments. The first commitment period for Annex I countries was set for 2008-12, a
period of ten years after the adoption of the Kyoto Protocol.152 In the interests of fairness, it
is worth keeping this in mind in determining commitment periods for developing countries’
commitments.
The fourth category consists of provisions that grant permission to adopt subsequent base
years. Under Article 4(6) FCCC, EITs are given ‘certain degree of flexibility’…including
with regard to the historical level of… (GHGs) ‘Chosen as a reference’ read with Article
3(5) of the Protocol provides certain EITs153. The issue of base years for these countries is
one that has significant consequences for the effectiveness of the regime. The concern over
‘hot air trading’ has haunted the climate negotiations since the adoption of the Kyoto
Protocol.154 The term ‘hot air’ was coined in the context of surplus emissions credits from
Russia and Ukraine.155 Emissions from these countries are 30% below their 1990 levels due
to economic restructuring. Stabilization targets for these countries imply that they have vast
quantities of unused emissions credits that they could trade or bank.156 Figures from the
FCCC Secretariat indicate that if all EITs trade their surplus air, the effort required by
151
Kyoto Protocol art. 13(4) (c) and (d).
Lavanya Rajamani, ‘The Principle of Common but Differentiated Responsibility & the Balance of
Commitments under the Climate Regime’9(2) Rev. Eur. Comm.& Int’L Env’t L. 120, 130 (2000).
153
See Rajamani, supra note 56 at 201 observing that those whose base year or period was established pursuant to
Decision 9/CP.2 of the Conference of the Parties at its second session shall use that base year or period for the
implementation of their commitments under this Article. Others who had not yet submitted their first national
communication under Article 12 FCCC could choose a different base year if they so desire. Article 3(5) Kyoto
Protocol.
154
Rajamani, supra note 56 at 202.
155
Id.
156
Id.
152
31
Annex B Parties will go down from 5.2% to 3%.157 Although at the time, the flexibility
provided to certain EITs was expected to be exercised to favour adoption of base years
subsequent to 1990, it was clear that earlier baselines could be adopted as well.158 For
instance Bulgaria chose 1988, Hungary 1985-7, Poland 1988, Romania 1989, and Slovenia
1986.159
The fifth category is provisions that provide for delayed reporting schedules. The FCCC
differentiates between industrial and developing countries both with respect to the required
content of national communications (developing countries objected to the term reporting, as
it appeared burdensome and intrusive160) and the time frame within which the
communication is to be submitted. All parties are to communicate information on their
national inventory of GHG emissions and removals to the extent their capabilities permit, as
well as on the steps taken or planned to implement the FCCC.161 Annex I countries are also
required to submit a detailed description of their policies and measures to implement their
specific commitments, and an estimate of the effect of these measures and policies on their
sources and sinks.162 Annex II countries are required to report on their transfers of financial
resources and technology.163
Developing countries are given considerable latitude in time to submit their initial reports.
While industrial countries have six months to submit their initial reports, developing
countries
have
three years
and LDCs can submit
their initial
reports
at their
discretion.164 Finally, developing countries are entitled to full financial support in preparing
their reports, and can receive technical assistance on request.165
157
Farhana Yamin, ‘The Kyoto Protocol: Origins, Assessment and Future Challenges’, 7(2) Rev. Eur. Community
& Int’L Entl.L.113 (1998).
158
Rajamani, supra note 56 at 202.
159
Information on National Greenhouse Gas Inventory Data from Parties Including in Annex I to the Convention
for the period 1990-2002, including the status of reporting, Executive Summary, FCCC/CP/2004/5(2004) at 16.
160
Bodansky supra note 82 at 544.
161
UNFCCC art. 12(1) (a) and (b).
162
Id. art. 12(2).
163
UNFCCC art. 12(2), (3), and (4) FCCC.
164
Id. art. 12(5).
165
Id. art.12(7).
32
The Six categories are provisions that deal with compliance procedures. CBDR is also
reflected in the compliance procedures of the climate regime. The rationale for compliance
procedures in the context of environmental treaties, is to assist defaulting states return to
compliance rather than to punish them for non-compliance, but these procedures ,
nevertheless , range from the coercive to the facilitative.166
The Kyoto Protocol compliance committee whose objective is to inter alia facilitate,
promote and enforce compliance with Protocol Commitments167 is arguably the most
rigorous of its kind,168 for the enforcement branch of the compliance committee has the
power to impose penal consequences for non-compliance.169 Rigorous as this system is, in
keeping with the nature and extent of differential treatment offered to developing countries
in the climate regime, it contains a soft approach to non-compliance by developing
countries.170
In the decision authorizing the creation of the compliance committee, parties included
implicit and explicit norms of differential treatment. Of the two branches of the compliance
committee, only the facilitative branch applies to developing countries.171 The facilitative
branch , which is empowered to provide financial and technical assistance, and/ or
advice, is
required
to do so’ taking into
account the principle of common
but
differentiated responsibilities and respective capabilities’.172 In addition, listed among the
consequences
that
the facilitative
branch
can apply is the
‘formulation
of
recommendations…taking into account Article 4, paragraph 7, of the Convention’173-a
166
M.A. Fitzmaurice and C. Redgwell, ‘Environmental Non-Compliance Procedures and International Law’, 31
Neth. Y’bk of Int’l 1.35,39 (2000).
167
Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, in Report of the Conference of
the Parties on its Seventh Session Addendum , Part Two: Action Taken by the Conference of the Parties, Volume
III, FCCC/CP/2001/13/Add.3(2002).
168
Geir Ulfstein and Jacob Werksman, ‘The Kyoto Compliance System: Towards Hard Enforcement,’ in
Implementing the Climate Regime ( Olav Schram Stokke et al.eds., 2005), 59.
169
Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol , supra note 167 at section XV.
170
Rajamani, supra note 56 at 203.
171
Procedures and Mechanisms, supra note 167. section V, paragraph 4.The mandate of the facilitative branch
extends generally to ‘promoting compliance by Parties with their commitments under the Protocol’, id . section
IV, paragraph 4.
172
Id. section ,IV, paragraph4.
173
Geir Ulfstein supra note 168. Id . section XIV , paragraph d.
33
provision stressing the centrality of financial assistance and technology transfer to the
environmental compact between developing and industrial countries.
The inclusion of the CBDR principle in the decision text on the compliance system is an
outcome of intense negotiations. Several industrial countries including Australia and the
United States opposed the introduction of CBDR principle in this context. Australia noted
that ‘it is not obvious to us what role such principles could play in a compliance system for
the Kyoto Protocol’.174
The United States Argued that: “[i]t is unclear whether Parties supporting reflection of
the principle of ‘common but differentiated responsibilities’ in the compliance context are
seeking a recognition that Parties may have different substantive obligations or whether
they mean that Parties with the same type of obligations might be treated differently in
terms of non-compliance procedures/consequences because of that principle. In our view,
Parties that have undertaken the same type of obligation should be treated the same in terms
of non-compliance.”175
On the other hand, most developing countries including the AOSIS,176 China,177 Republic
of Korea,178 Saudi Arabia,179 and South Africa,180advocated
inclusion of the
CBDR
principle in the text on compliance , and in the design of the compliance system. China in
particular stressed the need for the CBDR principle to ‘be acknowledged as a cornerstone of
the system’.181
174
Procedures and Mechanisms relating to Compliance under the Kyoto Protocol, Submissions from Parties, Note
by the Secretariat, FCCC/SB/1999/Misc.12 (1999) at 4.
175
Id. at 66.
176
Id. at 45.
Id. at 15.
178
Procedures and Mechanisms, supra note 163 at 2.
179
Id.
180
Id.
181
id.
177
34
In constructing the compliance system such that only the facilitative branch pertains to
developing countries, Parties ensured that the divergence in substantive obligations
between industrial and developing countries is reflected in the design of the system.
The reference to CBDR, however, occurs in the text relating to the facilitative branch. The
facilitative branch has overarching mandate to facilitate compliance with commitments,
whether of developing or industrial countries. The CBDR principle, placed in this context,
may well permit differential appreciation of broadly similar situations of potential noncompliance by industrial and developing countries. It may also permit differential
approaches to facilitation in this context. The additional reference to Article 4(7) FCCC
substantiates this point.182
The challenge to such compliance committee and its differential treatment is if developing
countries take on mitigation commitments, assuming they do so without including
themselves in Annex I, will they only be subject to the facilitative branch? The decision, if
applied as currently drafted, would only permit the compliance committee to facilitate and
promote (but not enforce) developing country compliance with mitigation commitments.
Much depends however on the nature and form that future commitments take. More
broadly, it remains to be seen how, given
the lack of clarity on the precise meaning of
CBDR in the context of the compliance system the principle will be operationalised.183
2.5.3 Provisions that grant assistance
The various forms of assistance under the climate regime are based on CBDR. The
assistance envisaged under the climate regime includes: Financial assistance, technology
transfer, capacity building as well as other forms of assistance. These forms of assistance
are explained below.
182
183
Rajamani, supra note 56 at 204.
Id. at 205.
35
First is financial assistance which is further subdivided into Costs and activities eligible
for financial assistance and Multilateral funds/funding mechanisms.184 The costs and
activities that are eligible for financial assistance take three forms. First, costs
fulfilling
reporting
obligations; second, costs in
complying with more
in
general
commitments such as with respect to mitigation, education , and awareness; and third,
costs incurred in adapting to the adverse effects of climate change.
Article 4(3) FCCC requires certain industrial countries to provide ‘new and additional
financial resources’ to meet the ‘agreed full costs’ incurred by developing countries in
complying with their reporting obligations.185 For general commitments under Article
4(1), certain industrial countries are required to provide financial resources ‘to meet the
agreed full incremental costs…’ By way of qualification Article 4(3) further provides
that ‘[t]he implementation of these commitments shall take into account the need for
adequacy and predictability in the flow of funds and the importance of appropriate
burden sharing among the developed country Parties’.186
It should be noted that this provision is constructed in mandatory rather than obligatory
language (Developed Country Parties…shall provide’187). The United States had argued
initially that financial assistance should be voluntary rather mandatory,188 as well created
a precedent the developing countries were not about to ignore.189 The contributions under
the FCCC were made mandatory. The level of funding however was left unspecified and
each industrial country can determine for itself the size of its financial contribution.
Numerous terms merit elaboration. The term ‘new and additional financial resources,’
nowhere defined , is intended to address the developing country concern that existing
184
Id.
UNFCCC art. 4(3).
186
Id.
187
Id .see Rajamani supra note 546at p.205.
188
Bodansky supra note 82at 525.
189
William A. Nitze, ‘International Negotiations Towards a Framework Convention on Climate Change: A status
Report’, Oil & Gas.& Tax’N Rev. 66, 70 (1991).
185
36
development aid will be diverted to climate activities.190 ‘Additional’ therefore implies
additional to Oversees Development Assistance (ODA). At UNCED developing countries
obtained a commitment of 0.7% of GNP from industrial countries. At the parallel
climate negotiations they ensured that the financial resources provided for climate
activities would be additional to such ODA.191
The terms ‘agreed full costs’ and ‘agreed full incremental costs’ are also left undefined.
These terms and their placement in this article however are a reflection of the industrial
countries’ reluctance to underwrite indeterminate costs. Industrial countries were willing
to underwrite developing countries’ reporting obligations as the costs involved are
determinate , but they were unwilling to underwrite the implementation of more
general commitments under Article 4(1) and elsewhere, as these were indeterminate and
could cover , for instance , costs that developing countries might incur in converting
from coal
to nuclear plants.192
The term ‘incremental’ implies something added.
However, to determine what might be added, it is essential to establish a benchmark or a
baseline. Since no such baseline is available, the focus of this provision is on the term
‘agreed’ such that whatever the nature of the cost an agreement would have to be
entered into between industrial and developing countries to ensure that it is covered.
The third category of costs that industrial countries agreed to cover, at the insistence of
the Alliance of Small Island States (AOSIS), are adaptation costs. Article 4(4) FCCC
requires certain industrial countries to ‘assist developing country Parties that are
particularly vulnerable to the adverse effects’ of climate change in meeting the costs
of adaptation to those adverse effects.’ Although this provision is also formulated in
mandatory terms (‘Developed Country Parties…shall’), it can be distinguished from the
commitment in Article 4(3). In the former, Parties are required to ‘provide’, in the latter
Parties are required to ‘assist’. Article 4(4) however does not specify the extent of
‘assistance’ available. It clearly does not cover full costs, and it is unclear whether it
190
Bodansky supra note 82 at 526, Rajamani supra note 54 at 206.
Rajamani supra note 56 at 206.
192
Bodansky supra note 82 at 526.
191
37
covers ‘full incremental costs’ or merely costs as agreed. And additional concern with
respect to adaption costs is in proving causality. It might be difficult for members of
AOSIS to prove that the adverse effects suffered are indeed linked to climate change
and are not merely the by-product of a naturally changing climate.193
In terms of multilateral funds/funding mechanisms; Article 11 FCCC provides for
financial mechanism and defines addresses a financial mechanism by setting forth the
mechanism’s general characteristics and governance.
The views of developing and developed countries as regards financial mechanism differ
significantly. On the one hand, developing countries have advocated a new financial
mechanism that would operate under the authority of the COP, and on the other hand
industrial countries have been insistent on their desire to channel financial assistance
through the existing GEF.194
The justification for the developing countries’ stand is that the provision of financial
assistance to developing countries under the FCCC is an obligation, not an act of
charity , and therefore donor countries do not have a right to control the financial
mechanism, which would be the case if existing institutions are co-opted into the
process, as these existing financial institutions are dominated by industrial countries.195
Developing countries opposed in particular the use of the GEF as its decision-making
was neither transparent nor democratic.196 Article 11 reflects a compromise:197 it defines
a financial mechanism accountable to the COP, but whose operation is entrusted to one or
more existing international entities. The financial mechanism is required to have
equitable and balanced representation of all Parties within the transparent system of
governance.
193
Rajamani, supra note 56 at 207.
Id.
195
Id.
196
Id.
197
Bodansky, supra note 82 at 538-9.
194
38
Article 11 is to be read in conjunction with Article 21(3) which entrusts the GEF
with the operation of the financial mechanism on an interim basis. Article 21(3) also
requires the GEF to be appropriately restructured and its membership made universal to
enable it to fulfil the requirements of Article 11.
The GEF, created in 1991, was restructured in 1994 in response to this mandate. The
Restructured GEF consists of an Assembly, a Council, and a Secretariat. The Assembly,
with policy and implementation review functions, consists of representatives of all
participants, while
consists of
the Council, with operational
thirty-two members-sixteen
and decision-making functions,
from developing
countries, fourteen from
industrial countries , and two from EITs.198
The voting system moved from one dollar one vote to a double-weighted majority
representing both a 60% majority of the total number of participants and a 60% majority
of the total contributions. 199The Restructured GEF has operated the financial mechanism
of the FCCC ever since. Developing countries have, however continued to express
dissatisfaction with the GEF. This dissatisfaction is reflected , for instance , in the fact
that developing countries ensure that the COP refers to the GEF as ‘an operating entity’
of the financial mechanism,200 rather than formally acknowledging it as the operating
entity of the Conventions’ financial Mechanism.201 In general, developing countries are
concerned with what they perceive as the continued domination of the donor countries
and the World Bank,202 and in particular they are concerned with the length of the GEF
project cycle , the extent of bureaucracy involved in it , and the complicated nature of
198
Instrument for the Establishment of the Restructured Global Environment Facility, 14-16 March. 1994,
reprinted in 33 ILM 1283 (1994).
199
Rajamani, supra note 56 at 207.
200
Decision 8/CP. 10, Additional Guidance to an Operating Entity of the Financial Mechanism, in Report of the
Conference of the Parties on its Tenth Session at 19.
201
Jacob Werksman, Consolidating Global Environmental Governance: New Lessons from the GEF, Paper
presented at ‘ Global Environmental Governance : The Post Johannesburg Agenda’ (Yale Centre for
Environmental Law and Policy, 2003), 9.
202
Anil Argarwal et al., Green Politics (1999) 311-42; and Anil Agarwal et al.,Poles Apart (2001) 371-80.
39
project approval process203 requiring strict adherence to global-local distinctions and
arcane definitions of ‘incremental costs.’204
At COP-7, after a few years of negotiation, Parties agreed to create a series of funds that
would address some of these concerns. Three funds were created as a result of the Bonn
Agreement and Marrakesh Accords, 2001. First is the Special Climate Change Fund to
finance activities
in adaptation; technology transfer; energy , transport, industry ,
agriculture, forestry , and
dependent
waste management; and activities
developing countries
to assist fossil-fuel
to diversify their economies205, second is Least
Developed Countries Fund to support a work programme for LDCs including on
adaptation,206 third, Kyoto Protocol Adaptation Fund to finance concrete adaptation
projects and programmes in developing country Protocol Parties.207
The special Climate Change Fund,208 the LDCs Fund,209 and the Kyoto Protocol
Adaptation Fund210 are to be operated by ‘an entity’ entrusted with the operation of the
financial mechanism of the Convention. The identity of the ‘entity’ was deliberately left
unspecified.211 On the Special Climate Change Fund , in its initial guidance to the GEF,
the COP requested the GEF to adopt ‘ streamlined procedures’ and to ensure
financial separation
of this fund from others.212 In its further guidance, the COP
requested the GEF to ensure ‘expedited access’, and to mobilize resources to
operationalize the Fund ‘without delay’.213
203
Summary Report of the First Assembly of the Global Environment Facility 1-3 April 1998’, 14(4) Earth
Negotiations Bulletin 4-5 (1998).
204
Argarwal, supra note 202.
205
Report of the Conference of the Parties on the Second Part of its Sixth Session, FCCC/CP/ 2001/5(2001) at
37-8.
206
Id. at 38.
207
Id . at 39.
208
Decision 7/CP.7, in Report of the Conference of the Parties on its Seventh Session, Addendum , Part Two:
Action Taken by the Conference of the Parties, Volume IV, FCCC/CP/2001/13/Add.1 (2002) at 43-44.
209
Id.
210
Id.
211
Rajamani, supra note 56 at 208.
212
Decision 7/CP.8 , in Report of the Conference of the Parties on its Eighth Session, Addendum, Part Two:
Action Taken by the Conference of the Parties, FCCC/CP/2002/7/Add.1 (2003) at 17.
213
Decision 5/CP.9, in Report of the Conference of the Parties on its Ninth Session Addendum, Part Two: Action
Taken by the Conference of the Parties, FCCC/CP/2003/6/Add.2 (2004) at 13-31.
40
On the LDCs Fund, in its initial guidance , the COP requested the GEF to ‘ensure the
speedy release and disbursement of funds and timely assistance for the preparation of
national adaptation programmes of action.’214 In its further guidance, Parties requested
the GEF to ensure ‘a country-driven approach, in line with national priorities,’ and to take
into account ‘guidelines for expedited support’.215
The second form of assistance is technology transfer. Article 4(5)FCCC requires certain
industrial countries to promote , facilitate and finance the transfer of environmentally
sound technologies and know-how to developing country Parties to enable them to
implement the provisions of the FCCC.216 The provision however is ambiguous in some
respects, and contains phrases that provide significant flexibility to industrial countries in
implementing their technology transfer commitments.
The ambiguity in this article relates to the identification of the donors and recipients of
technology transfer. While it is clear that Annex II Parties are donors and developing
countries are recipients, the position of the EITs is less clear.217 According to Article
4(5), the parties responsible for technology transfer are ‘developed country Parties and
other developed country Parties included in Annex II’. This appears to indicate that
Annex I and Annex II Parties are responsible for technology transfer i.e. EITs are
responsible for technology transfer as well. However, Article 4(5) identifies the recipients
of technology transfer as ‘other Parties, particularly developing country Parties’. The
term ‘other’ here refers to Parties other than ‘developed country Parties and other
214
Decision 8/CP.8, in Report of the Conference of the Parties on its Eighth Session at 19.
Decision 5/CP.9, in Report of the Conference of the Parties on its Ninth Session Addendum, Part Two: Action
Taken by the Conference of the Parties, FCCC/CP/2003/6/Add.2 (2004) at 13-31.
216
See Rajamani supra note 56 at 209 observing that developing countries consider the transfer of technology to be
a precondition to their implementation of the Convention. The text of Article 4(7)FCCC supports this belief.
However , considerable controversy exists on the terms under which technology is to be transferred from developed
to developing countries. Chapter 34 of Agenda 21 provides that access to environmentally sound technologies
should be promoted on ‘favourable terms, including on concessional and preferential terms’. Agenda 21, Chapter
17,, A/CONF.15/26/Rev.I (Volume. II) (1992). No consensus exists on what the phrases ‘concessional’ and
‘preferential’ mean in practice.
217
Id. at 209.
215
41
developed country Parties included in Annex II’.218 Presumably those developed country
Parties (not in Annex II) that are not donors can be recipients of technology transfer. It
appears then that EITs can be considered both recipients and donors of technology
transfer.
Article 4(5) of FCCC by way of permitting flexibility to industrial countries in their
implementation requires industrial countries to ‘take all practicable steps’ to promote,
facilitate, and finance ‘as appropriate’ the access to and transfer of technology.
The Buenos Aires Plan of Action set in motion a consultative process aimed at achieving
agreement on a framework for meaningful and effective actions to enhance
implementation of Article 4(5).219 Parties prepared a draft framework for technology
transfer in the lead-up to COP-6.220 The framework
contained in directives grouped
around five themes: needs assessments, technology information, enabling environments,
capacity building, and mechanisms for technology transfer.221 This framework was
adopted at Marrakesh and is directed at breathing life into the technology transfer
requirements of the FCCC.222
The third form of assistance is capacity building .The FCCC is dominated by provisions
on the necessity of meeting the specific needs and concerns of developing countries,223
implicitly recognizing that the ability of a country to adapt to climate change and to
mitigate GHG emissions depends upon the resources of its people and institutions.224
218
First sentence of Article 4(5).
Decision 9/CP.4, in Report
of the Conference of the Parties on Its Fourth Session ,
FCCC/CP/1998/16/Add.1(1998) at 22.
220
Report of the Subsidiary Body for Scientific and Technological Advice on the Work of Its Thirteenth Session,
Part one :Development and Transfer of Technologies: Status of the Consultative Process (Decision 4/CP.4): Draft
framework for meaningful and effective actions to enhance the implementation of Article 4(5) of the Convention,
FCCC/SBSTA/2000710/Add.4 (2000).
221
Id.
222
Decision 4/CP.7, in Report of the Conference of the Parties on its Seventh Session, Addendum , Part Two:
Action Taken by the Conference of the Parties, Volume I, FCCC/CP/2001/13/Add.1 (2002) at 22.
223
UNFCCC art. 3(2), 4(8), and 4(9).
224
Agenda 21, Chapter 37 UNCED,A/CONF/.151/26(1992).
219
42
Capacity building refers to initiatives to develop and improve national, sub-regional, and
regional capacities and capabilities for sustainable development.225
While the Buenos Aires Plan of Action did not contain a specific decision on
capacity building , several
decisions
taken at COP-4 , particularly on technology
transfer226 and adverse effects,227contained detailed references to the need for
capacity building in developing countries. COP-5 crystallized the ambition resonating
through these decisions, and urged that elements of a draft framework for capacitybuilding activities, both in developing countries and EITs, were developed at COP-6 and
adopted at Marrakesh. Although the utility of capacity building is recognized in other
environmental treaties, the climate regime is unique in having negotiated a framework for
capacity building in developing countries and EITs.228
Finally, the climate regime recognizes that developing countries need financial assistance
in participating in the negotiations, and that such participation is critical to an effective
outcome.229 GA resolution 45/212 established a special voluntary fund in 1990 ‘to
ensure that developing countries, in particular the least developed among them, as well
as small island developing countries, are able to participate fully and effectively in the
negotiating process’.230 Such negotiation assistance has proven effective in bringing a
large number of countries to the table and therefore in representing a wider range of
interests.
The climate regime also provides reporting assistance to developing countries. Article 12
(7) FCCC
requires
the COP to arrange
for technical and financial support
to
developing countries in compiling national communications, and Article 8(c) FCCC
225
Id.
Decision 4/CP.4. in Report of the Conference of the Parties on Its Fourth Session , Addendum , Part Two:
Action Taken by the Conference of Parties at its Fourth Session, FCCC/CP/1998/16/Add.1 (1998) at 11.
227
Decision 5/CP.4, Report of the Conference of the Parties on Its Fourth Session, FCCC/CP/1998/Add.1 (1998) at
17.
228
Rajamani supra note 56 at 211.
229
Protection of global climate for present and future generations of mankind, GA Res. 45/212 (1990) at paragraph
10.
230
Id.
226
43
requires
the FCCC Secretariat ‘to facilitate assistance to the Parties, particularly
developing country Parties on request , in the compilation and communication of
information’.
2.6 CBDR at recent climate negotiations
2.6.1 The Copenhagen Accord and CBDR
At Copenhagen, the issues which had implications for the principle of CBDR were:
comparability of action, incremental costs and Measurement, Reporting and Verification.
The next subsections deal with these issues in detail.
The notion of comparability of action which is a brain child of the Unites States requires
comparability between the mitigation actions of industrialized and developing
countries.231 This notion has far reaching implications for CBDR to the extent that it
defeats the very essence of differentiation and therefore equity. The other aspect of this
notion is for other Annex 1 countries to require comparability between their actions and
those of the US.232 Comparability of action can be traced to the Bali Conference.
At the Bali conference, developing countries pushed for what has been dubbed233 ‘a two
track’ process to be reflected in the Bali Action Plan with a view to preserving strict
differentiation. The ‘two track’ process would take the form of a legally binding Kyoto
Protocol track for Annex 1 countries, and a “Long-Term Cooperative Action” (LCA)
process for non-Annex 1 countries. According to developing countries, combining these
two tracks would be pulling on a string that would unravel the entire architecture of the
UNFCCC built around differentiation between the North and the South.234 To resolve this
impasse, recourse was had to the ‘schedules approach proposed by Australia’. The
schedules approach allowed each country to inscribe its national actions in a schedule
231
Navroz
K
Dubash,
Copenhagen:
Climate
of
Mistrust.
http://www.indiaenvironmentportal.org.in/files/COP.pdf (accessed on 20 September,2010).
232
Id.
233
Id.
234
Id.
44
available
at
with provision for only a soft form of differentiation by action-economy-wide
commitments versus a range of national actions-between Annex 1 and non-Annex 1
countries.235
The Copenhagen Accord236 in a bid to reconcile differentiation and comparability allows
for two schedules, one which will contain economy-wide emission targets by Annex 1
countries, and the other which will document mitigation actions by non-Annex 1
countries.237 The Copenhagen Accord redefines differentiation through the schedule
approach, and allows for comparability by harmonizing downward and making less
legally stringent necessary actions by all countries.238
What is clear from the preceding discussion is that comparability of action has the effect
of altering if not fully eroding differentiation and the underlying notion of distributive
equity on which differentiation under the climate regime is built.239 Comparability of
action also has far reaching implications for differentiation in terms of Measurement,
Reporting and Verification (MRV). These implications are examined below in details.
Measurement, Reporting and Verification (MRV) is one of the consequences of the
notion of comparability of action. The critical question here is whether and how
developing country actions unsupported by financial aid would be subjected to MRV. It
should be recalled that the Bali Action Plan links developing countries’ “nationally
appropriate mitigation actions” to provision of finance, technology and capacity support
from industrialized countries. The challenge however is whether and how these actions
are to be subjected to MRV.
The view of developing countries regarding this issue was expressed by China and India
on behalf of the rest of the developing countries to the effect that while actions supported
235
Id.
UNFCCC, the Copenhagen Accord. Available at
http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf (accessed on 5 October, 2010)
237
Id. paras. 4 and 5.
238
Navroz supra Note 231.
239
Id.
236
45
by international finance would be subject to international MRV, unsupported actions
undertaken as part of a development strategy would only be subject to domestic scrutiny.
China further argues that international verification of Chinese emissions target progress
would be viewed as an infringement upon Chinese sovereignty.240 The US insisted that
developing countries particularly China also subject their actions to international
scrutiny. Under the final compromise, non-Annex 1 countries would report upon their
mitigation actions, with provisions for international consultations and analysis under
clearly defined guidelines that will ensure that national sovereignty is respected.”241
Although it would seem that this approach settles the issue, it leaves a lot to be desired as
regards reconciling differentiation and comparability. In addition, whether the
compromise will be adopted in domestic politics is still a subject of speculation.242 An
illustration of the challenge posed to differentiated responsibilities by the failure to
reconcile differentiation and comparability for example, is that detailed rules will need to
allow countries like China and India to claim they have retained control over their carbon
destiny, while also allowing the US to claim it now has the right to hold China and India
to account, which is inevitably a big hurdle.243
While the above mandate is based on the principle of CBDR, it is the issue of
Measurement, Reporting and Verification for Nationally appropriate mitigation actions
(NAMAs) in developing countries which demonstrates a significant departure from
CBDR in its pure form.
The issue of MRV has been dealt with by the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention (AWGLCA). AWGLCA is a new FCCC
subsidiary body established under the Bali Action Plan at Cop13. The new Working
240
Id.
Copenhagen Accord para. 5.
242
Daniel Bodansky., The Copenhagen Climate Change Conference:A Post-Mortem (University of Georgia School
of Law February 12, 2010). Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553167 (accessed on
the 24 October 2010).
243
Jeffrey Ball, Stephen Power, & Guy Chazan, Climate Summit: Divisions Persist on Core Questions as Leaders
Arrive–Sharp Disagreements on Reductions, Aid, WALL ST. J., (Dec. 16, 2009), at A16.
241
46
Group is responsible for overseeing the process established under the Action Plan to
develop a framework for addressing climate change post-2012.
At the eleventh session of AWGLA,244 the Parties agreed that NAMAs, enabled and
supported by finance, technology and capacity-building, should be subjected to
Measurement, Reporting and Verification (MRV) at the international level in accordance
with guidelines to be adopted by the Conference of the Parties at its XX session.
Domestically-funded mitigation actions taken by developing country Parties will be
subject to their domestic measurement, reporting and verification. For measurement,
reporting and verification of mitigation actions covered by market-based mechanisms, the
requirements and rules governing participation in the relevant market-based mechanisms
shall apply.245
Another contentious issue at Copenhagen which has implications for CBDR was
Incremental cost. The complexity of this issue stems from the principle that industrialized
countries should pay for the “agreed full incremental cost” of developing countries
measures as enshrined in the UNFCCC.246
The issue here is that despite the use of the word “agreed” there is no clarity as regards
the basis on which incremental costs are to be defined. The result, in practice, has been a
bargaining process. There is uncertainty surrounding the cost of incremental costs. The
UK for instance puts the figure at $100 billion per year by 2020 as the cost of support for
developing country adaptation and mitigation.247 While many developing countries and
analysts place the required figure much higher.248 Indian and China have consistently
demanded that industrialized countries contribute 0.5 to 1% of their GDP for climate
mitigation and adaptation. At Copenhagen India and China stated that they did not
244
UNFCCC, AD HOC WORKING GROUP ON LONG-TERM COOPERATIVE ACTION UNDER THE
CONVENTION
Eleventh
session
Bonn,
2–6
August
2010
.
Available
at:
http://unfccc.int/resource/docs/2010/awglca11/eng/08.pdf . accessed on 4 October, 2010.
245
Id .
246
UNFCCC Art. 4(3).
247
Hugh Bredenkamp and Catherine Pattillo, Financing the Response to Climate Change.( IMF 2010).
248
Table 6.2 in World Bank, Development and Climate Change, World Development Report 2010 (Washington DC:
World Bank), p 260.
47
anticipate benefiting greatly from these funds, but insisted on them as a matter of
principle, particularly on behalf of smaller developing countries.249
The debate revolves around not only the amount of money, but also on questions of
additionality, predictability and governance. Developing countries have invoked
differentiated responsibility by inter alia arguing that climate funds should be additional
to aid, since these are payments by polluters for past emissions.250 But at the same time,
as industrialised countries argue, if addressing climate change requires rethinking
development practices, aid patterns over time should also reflect climate considerations.
Developing countries stress that climate funds should be predictable, and not subject to
the vagaries of the market.251
In an attempt to solve this stalemate, “assessed contributions” by all on the basis of a
basket of criteria has been considered a useful mechanism252. Under the “assessed
contributions” mechanism proposed by Mexico and Norway, all Parties would contribute,
but developing countries would be net recipients.253
However, citing differentiated responsibility; developing countries are strongly opposed
to contributing funds, even if it is less than they receive. Finally, developing countries
strongly argue that climate funds should not be construed as aid, but as a response to
historical responsibility for past emissions, and therefore should be governed in
substantial part by recipient countries. Of particular contention is that the World Bank,
controlled by donors, not be allowed to control these funds. Dispute over all these issues
are closely tied to the principle of differentiation.254
249
Bodansky Copenhagen Postmortem supra note 242.
Id.
251
Id.
252
Id.
253
Id.
254
Navroz supra note 231.
250
48
3
Challenges of the principle of CDBR in the climate regime
3.1 +on-participation
The absence of developing countries on the basis of CBDR has been cited to be, “the most
serious and intractable shortcoming of the climate regime and particularly the Kyoto
Protocol.”255 Indeed US’ absence is largely a function of the absence of developing countries.
The United States is reluctant to join Kyoto because it does not include developing country
targets. If we can solve the developing country issue, then the issue of US nonparticipation
will take care of itself. Three reasons have been advanced for advocating the participation of
developing countries.256
First, the developing countries will be the source of the big increases in emissions in coming
years according to the Business-as-Usual path (BAU), that is, the path along which technical
experts forecast that countries’ emissions would increase in the absence of a climate change
agreement.257 China, India, and other developing countries will represent up to two-thirds of
global carbon dioxide emissions over the course of this century, vastly exceeding the
OECD’s expected contribution of roughly one-quarter of global emissions. Without the
participation of major developing countries, emissions abatement by industrialized countries
will not do much to mitigate global climate change.258
Second, if a quantitative international regime is implemented without the developing
countries, their emissions are likely to rise even faster than the BAU path, due to the problem
of leakage.259 Leakage of emissions could come about by relocation of carbon-intensive
industries from countries with emissions commitments under the Kyoto Protocol to nonparticipating countries, or by increased consumption of fossil fuels by non-participating
countries in response to declines in world oil and coal prices. Estimates vary regarding the
damage in tons of increased emissions from developing countries for every ton abated in an
255
Jeffrey Frankel, Formulas for Quantitative Emission Targets,( John F. Kennedy School of Government - Harvard
University, February 2007). Available at http://ssrn.com/abstract (accessed 20 Sept 2010)
256
Id.
257
Daniel M. Bodansky, Targets and Timetables: Good Policy But Bad Politics? University of Georgia School of
Law research paper series (2007).
258
Frankel supra note 237.
259
Id.
49
industrialized country. But an authoritative survey concludes “Leakage rates in the range of 5
to 20 per cent are common”.260
Third, the opportunity for the United States and other industrialized countries to buy
relatively low-cost emissions abatement from developing countries is crucial to keep the
economic cost low.261 This necessitates the participation of developing countries in the
international emissions commitments. Such participation will go a long way in increasing the
probability of industrialized countries complying with the system of international emissions
commitments.
3.2 Challenges of emission targets and per-capita approach
Under the current climate regime, the principle of CBDR has been translated in practice into
a set of specific, quantitative emission mitigation obligations for industrialised countries and
no emission mitigation obligations for developing countries.262 Emission targets andtimetables inter alia, aim to address the equity concerns of developing countries. However ,
this approach has been criticised on a number of grounds, first, emission targets represent an
economic straitjacket and could impose unacceptable high costs on countries, second from
the political stand point, rich countries would never accept the huge transfer of wealth from
them to the poor that is implicit in the per capital formulation.263 Third, from a developing
country perspective, China and India argue that economy-wide, binding emission targets are
unacceptable because they would unduly restrict their national sovereignty.264 True, emission
targets give countries flexibility as to the choice of national implementing measures. States
can implement their targets through a domestic trading scheme, taxes, efficiency standards,
and so forth.265 But because virtually every aspect of a country’s economy contributes to
climate change – not only energy production, but also transportation, manufacturing, and
260
International Panel on Climate Change, Third Assessment Report - Climate Change 2001.
Frankel supra note 255.
262
Id.
263
Id.
264
Daniel M. Bodansky, Targets and Timetables: Good Policy But Bad Politics? University of Georgia School of
Law research paper series (2007).
265
Id.
261
50
even agriculture – an economy-wide target represents, both symbolically and in practice, a
constraint on a country’s economy as a whole.266
Inevitably, the challenges highlighted above result in compliance problems in the sense that
states will simply not be able to negotiate a series of progressively stricter emissions
targets,267 and in the absence of effective sanctioning mechanism, states will be unlikely to
participate and comply.268
The USA` persistent refusal to ratify the Kyoto Protocol
illustrates the challenges of the emissions targets approach.
3.3 Challenges associated with comparability of action
In chapter two, it was indicated that comparability of action poses a challenge to CDBR
in the following ways: first it requires comparison of mitigation actions between
industrialized countries and developed countries. This has the effect of altering and or
eroding differentiation between the North and the South. Second, the requirements of
Measurement, Reporting and Verification (MRV) under this notion raises the question of
whether and how developing countries actions unsupported by financial aid would be
subjected to MRV.
Although this issues seems to have been resolved at Copenhagen by requiring, nonAnnex 1 countries to report upon their mitigation actions, with provisions for international consultations and analysis under clearly defined guidelines that will ensure that
national sovereignty is respected, the challenge of reconciling differentiation and
comparability remains unsolved. Third, is the issue of incremental costs. The challenge
here stems from the principle that industrialized countries should pay for the “agreed full
incremental cost” of developing countries measures as enshrined in the UNFCCC.269 The
problem is that despite the use of the “agreed” there is no clarity as regards the basis on
266
Id.
Victor, David G. , The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming, Princeton, NJ:
(Princeton University Press 2001).
268
Barrett, Scott ., Environment and Statecraft: The Strategy of Environmental Treaty-Making, (Oxford: Oxford
University Press 2003).
269
UNFCCC art. 4(3).
267
51
which incremental costs are to be defined. There is an urgent need to address these issues
and the AWGLCA should continue to consider these issues in its ongoing sessions.
4 Recommendations
4.1 Set targets for developing countries
In chapter three, we established that non-participation of developing countries in
emission mitigation premised on CBDR is the main challenge of CBDR. To address the
problem of non-participation, it would be imperative to set indexed growth targets for
developing countries which will dispel the fear that greenhouse gas emission targets
could adversely impact their economic growth.270 It is perceived that if developing
countries are given targets that, while below business-as-usual, are achievable at a lower
cost than the international carbon price, then the potential gains from emissions trading
should provide developing countries with an upside incentive to participate.271
However, the challenge is to set developing country targets at a level that will allow
them to make more from the sale of surplus emission allowances than it costs to produce
those surplus allowances by reducing emissions. Moreover, if emission targets are not
fixed but are tied to a country’s GDP, then this will protect developing countries against
the downside risk that rapid economic growth will make it costly for them to achieve
their targets, since as their economies grow, their permitted emissions will rise as well.
By setting indexed emission targets at an appropriate level, developing countries can be
enticed to participate.272 And so long as developing countries participate, and the US
target is set at a relatively moderate level initially, the United States will be willing to
join as well.273
270
Frankel, supra note 255, at 15.
Id.
272
Id.
273
Id.
271
52
4.2 The need for new formulas for setting targets
Principles of qualitative emission limits and international trading have been cited as the
next step after Kyoto.274 This approach will promote comprehensive participation and
efficiency and will redefine the principle of CBDR.275 It should be recalled that these
principles are enshrined in the Kyoto Protocol, however, this new approach can be
distinguished from Kyoto in the sense that it seeks realistically to bring in all countries
and to look far into the future.276
To achieve comprehensive participation and efficiency, new formulas for setting targets
have been proposed277. Formulas include allocation of quotas across countries in any
given budget period according to a nested sequence of formulas for emissions.278 The
formula is initially general but becomes specific as the budget period in question draws
close. From a decade long perspective, the formula for emission limits would be phrased
as cuts from the expected Business as Usual Path (BAU).279 According to this approach,
the BAU baseline will involve rapid increases in emissions for such countries as China
and India. The implication is that , notwithstanding cuts relative to the baseline, there
will be growth targets for such countries , not cuts in the absolute levels of emissions as
were agreed by the industrialised countries at Kyoto.
280
Thus the formula for targeted
reductions would inter alia include among its determinants the following variables: 1990
emissions, emissions in the year of the negotiation, population, income and others
variables such as whether the country in question has resources like coal or hydroelectric
power.281
In essence, all countries will be subjected to a uniform formula. Caution should however
be taken to ensure that the formula is not too rigid ,for the simple reason that no country
274
Id. at 17-22.
Id.
276
Id.
277
Id.
278
Id.
279
Id.
280
Id.
281
Id.
275
53
be it the US or the developing countries will agree to a costly sharp reduction relative to
the status quo.282
4.3 Create Incentives for developing countries to join a system of quantitative targets
One of the reasons why developing countries have sought to rely on the principle of
CBDR to exempt themselves from commitments is the fear of being asked to undertake
large emission cuts. To address this fear, the post 2012 climate regime will have to device
what has been referred to as
the “framework of a nested sequence of formulas”283
which could include the possibility, that the target for emissions in the limit as the year
under consideration approaches infinity puts zero weight on income or past levels of
emissions, and complete weight on population. In the very long run, the developing
countries would notionally achieve their equity-based demand for equal levels of
emissions per capita.284
It is worth considering that by the 22nd century, China could well have caught up with
Western countries in income per capita (other Asian countries like Singapore have
already done so), in which case the proposal that the emission targets should put all
weight on population gives an answer similar to putting all weight on any combination of
population or income.285 If quantitative emissions commitments are set for developing
countries in a very careful way, they can address their concerns, at the same time as
addressing the concerns of the rich countries.286
Three principles have been proposed287 to guide the formulation of such targets: first,
gains from trade, this approach envisages a Kyoto-like system of targets-with-trading
which has both environmental and economic advantages for the world and the developing
282
Id.
Id. at 22-32.
284
Id.
285
Id.
286
Id.
287
Id.
283
54
countries themselves.288 Second is progressivity, one of the reasons why developing
countries have often invoked the CBDR principle when it comes to emission targets is for
fear of being asked to accept emissions targets that are more stringent than BAU.
Dealing with this impasse requires that a reasonably lower bound for developing country
emission targets is set which would be the “break even” level. This is the level that leaves
them neither better off nor worse off economically than if there had been no treaty at
all.289 It is a level where they have to make some low-cost reductions from the start, but
where sales of emission permits at an intermediate price are sufficient to compensate
them for their marginal reduction. The rationale for this approach is to ensure that they
fall in the range that is bounded above by BAU and bounded below by the break-even
level. As long as the target is above the break-even lower bound, the developing countries
benefit economically from the arrangement.290 They should therefore be enticed by such
an approach to voluntarily join a system of quantitative targets.
Third, protection against inadvertent stringency, poor countries worry that uncertainty
surrounding their forecasted economic performance is so great that they cannot now risk
adopting an emissions target that would be binding five or ten years in the future.291 A
response to this concern would be to structure international agreements regarding these
countries’ targets so as to reduce the risk of being inadvertently stringent.292
4.4 +eed to differentiate within the developing countries
As indicated in Chapter two, one of the reasons for America’s refusal to ratify the Kyoto
Protocol is the lack of commitments for developing countries on the basis of
differentiated responsibilities. This contention is given credence by the fact that Countries
with huge populations and fast industrializing economies such as India, China and Brazil
enjoy equal treatment with other developing countries thereby affording them an unfair
economic advantage over the developed countries. It is submitted that this contention is
288
Id.
Id.
290
Id.
291
Lutter, Randy , Developing Countries’ Greenhouse Emissions: Uncertainty and Implications for Participation in
the Kyoto Protocol. Energy Journal 21(4): (2000) 93-120.
292
Id.
289
55
legitimate and should be addressed with the urgency it deserves. One of the most feasible
solutions to this challenge is to differentiate within developing countries. Recent emission
data shows that China and not the US is now the world’s largest emitter of carbon
dioxide.293 Against this background, there is need to redefine differentiation so as to
allow differentiation within developing countries by apportioning responsibilities and
commitments to developing countries with high emission levels.
However, in ensuring differentiation within developing countries , we should not lose
sight of the underlying rationale for differential treatment which is premised on historical
levels of greenhouse gas emissions whose main responsibility is born by developed
countries. For instance by way of comparison the United States has been industrialized
for about a century longer than India and China, therefore its cumulative emissions are
still higher than that of China, India and Brazil294.
It therefore follows that differentiation within developing countries should aim at
allocating obligations and commitments to countries like China but should not aim at
equal treatment of these developing countries with developed countries like US.295 The
other justification for differential treatment between, developed and developing countries
with high emissions such as China and India is what has come to be known as ‘pollution
by proxy’296 which means that developed countries have exported their manufacturing
and emissions to developing countries.297 To illustrate this view a recent study found that
if all the goods imported into the United States in 2004 had been produced domestically
America’s carbon dioxide emissions would have been as much as 30 percent higher.298
293
Elizabeth Rosenthal, “China Increases Lead as Biggest Carbon Dioxide Emitter, The New York Times, (June 14,
2008).
294
Climate Change Mitigation Measures in the People’s Republic of China, Pew Center on Global Climate Change,
April 2007, page 1, available at http://www.pewclimate.org/docUploads/International%20Brief%20-%20China.pdf
(last visited October 28, 2010).
295
Fred Pearce, Saving the world, plan B, NEW SCIENTIST, Dec. 13, 2003, at 6 (“CO2 and other greenhouse gases
linger in the atmosphere for a century or more.”)
296
Pew Centre supra note 294.
297
China Grabs West’s Smoke-Spewing Factories by Joseph Kahn and Mark Landler, (NYT Dec,2007).
298
Christopher L. Weber and H. Scott Matthews, Quantifying the Global and Distributional Aspects of American
Household Carbon Footprint, Ecological Economics Vol. 66 Issue 2-3, (2008). page 379-391, available at
56
Another study established that roughly 23% of the greenhouse gas emissions in China is
generated in the production of goods exported to other countries.299
Therefore in light of the foregoing discussion, differentiation within developing countries
should not be aimed at requiring developing countries with high emissions to take up
similar commitments as the developed countries but it should aim at ensuring equity
within developing countries by according differential treatment between developing
countries with high emissions levels and those with low emission levels. This will ensure
that the principle of CBDR is maintained albeit not in a slightly modified form.
5
Conclusions
Notwithstanding CBDR, there is an increasing demand for global participation both by
major industrialized nations and by key developing countries. Such participation is
necessary to address the climate change problem effectively and efficiently. The
justification for global participation in the climate regime is that the share of global
emissions attributable to developing countries is significantly sky rocketing. It is
estimated that, developing countries may account for more than half of global emissions
by the year 2020, if not before.300 A frequently voiced response to this assertion is that,
on an ethical basis industrialized countries should on their own, take the initial steps of
making serious emissions reductions. But the simple reality is that developing countries
provide the greatest opportunities now for relatively low cost emissions reductions.301
Hence, it would be excessively and unnecessarily costly to focus emissions-reductions
activities exclusively in the developed world. However, global participation should not
suppress the principles of equity on which the principle of CBDR is built.
http://econpapers.repec.org/article/eeeecolec/v_3A66_3Ay_3A2008_3Ai_3A2-3_3Ap_3A379-391.htm (last visited
October 28, 2010).
299
Tao Wang and Jim Watson, Who Owns China’s Carbon Emissions?, Tyndall Centre for Climate Change
Research, (October 2007), available at http://tyndall.webapp1.uea.ac.uk/publications/briefing_notes/bn23.pdf (last
visited November 12, 2010).
300
Nakicenovic, Nebojsa, and Rob Swart, eds. Special Report on Emissions Scenarios. Intergovernmental Panel on
Climate Change. (Cambridge, United Kingdom: Cambridge University Press, 2000).
301
Watson, Robert T., ed. Climate Change 2001: Synthesis Report. Contributions of Working Group I, II, and III to
the Third Assessment Report of the Intergovernmental Panel on Climate Change. (Cambridge, United Kingdom:
Cambridge University Press, 2001).
57
It has been proposed that to achieve broad participation, a framework for multilateral
climate action must be flexible enough to accommodate different types of national
strategies by allowing for different types of commitments. It must enable each country to
choose a pathway that best aligns the global interest in climate action with its own
evolving national interests.302 The flexible approach will involve developed countries
committing to emissions targets, but allowing them to implement their commitments “in
conformity with domestic law.303 This approach will allow developed countries, through
their national legislation, to specify their targets in somewhat different ways. This allows
developed countries to define their targets differently in their national legislation targets
differently in their national legislation for example, with respect to precise sectoral
coverage, base years, or allowable offsets.304
A broader form of flexibility has been proposed by Australia which is enshrined in a
proposal to establish schedules of national commitments and actions, which is similar to
the nationally appropriate mitigation action (NAMAs) registry proposal of Korea.305
Rather than defining commitments through a top-down negotiating process, as in Kyoto,
states would engage in a bottom-up process, in which they would develop national
schedules of commitments and actions and then register those commitments and actions
internationally. As the Australian proposal explains, the schedule approach would “give
Parties substantial flexibility to craft commitments and actions in a manner appropriate to
their national circumstances.” Schedules could include both legally binding commitments
as well as non-binding actions.306 The Australian proposal suggests that developed
country schedules should include comparable mitigation efforts, including emission
302
Report of the Climate Dialogue at Pocantico (Washington, DC: Pew Center on Global Climate Change, 2005), p.
9.
303
US Submission on Copenhagen Agreed Outcome,” UN Doc. FCCC/ AWGLCA/2009/Misc.4 (Part II), p. 106.
Bodansky, Creating a More Flexible Architecture for Climate Change Governance (September 29, 2009).
Available at SSRN: http://ssrn.com/abstract=1480222.
305
“Schedules in a Post-2012 Treaty,” Submission of Australia, UN Doc. FCCC/ AWGLCA/2009/Misc.4 (Part I), p.
22.
306
Id.
304
58
targets, while developing country schedules could include other types of commitments or
actions, such as sectoral targets or particular policies and measures.307
These types of flexibility when fully implemented will address the challenge of lack of
broad participation in the climate regime which continues to plague the principle of
Common but Differentiated Responsibility in the Climate Regime.
307
Bodansky supra note 304.
59
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